Opinion
No. 34462
Decided March 7, 1956.
Wills — Construction — Speaks as of death of testator — Specific bequest — Plain and unambiguous, when — Bequest of money.
1. A will ordinarily speaks as of the death of the testator.
2. A specific bequest to a designated beneficiary of "all cash in the box on the desk in the back room of my home" is plain and unambiguous, and such beneficiary, on the death of the testator, takes such amount of cash as is in the box at that time.
APPEAL from the Court of Appeals for Lucas County.
Robert J. Evans, of the city of Toledo, died testate on April 3, 1951. His will, dated January 23, 1948, was duly admitted to probate in the Probate Court of Lucas County and letters testamentary were issued to Carl R. Balduf, named therein as executor.
Such will, as it affects bequests and devises, reads as follows:
"Second. I give and bequeath to my brother, Carney H. Evans, my automobile, together with all accessories therefor, the contents of the shop in the rear of my home, all tools about my home, and the scrap lumber in the attic of my home.
"Third. I give and bequeath to the children of Carl R. Balduf and Nell Balduf all of my United States savings bonds, share and share alike.
"Fourth. I give and bequeath to Ernest C. Zimmerman, one hundred dollars ($100) in cash.
"Fifth. I give and bequeath to Nell Balduf all cash in the box on the desk in the back room of my home.
"Sixth. I give and bequeath to Nell Balduf, Amelia Bauer and my niece Lucille M. Evans such articles as each of them may select from the household goods and furnishings in my home not disposed of under the last will and testament of my wife, Emma A. Evans, now deceased.
"Seventh. I give and bequeath to The Calumet Masonic Temple Association, Inc., the steel engraving of the Signing of the Declaration of Independence.
"Eighth. All the rest, residue and remainder of my estate I give, devise and bequeath to my niece, Lucille M. Evans."
Later the executor brought an action in the Probate Court praying the judgment and direction of the court in regard to the true construction of item five of such will, and as to his duty as executor in the premises.
The petition asking for the construction of item five contains the following allegations:
"During the last sickness of Robert J. Evans in March, 1951, defendant Lucille M. Evans, as the agent, at the direction of Robert J. Evans, got out of the metal box in the back room of the Evans home, the sum of fourteen hundred dollars ($1,400) and deposited the same, along with other funds, in a commercial account in the name of `(Mrs.) Lucille M. Evans, agent' in The Ohio Citizens Trust Company of Toledo, Ohio. Also in the metal box in the back room in the Evans home at the time of decedent's death were two bank books, to wit:
"(a) Savings account number 45462 in the name of Robert J. Evans with The Home Building Savings Company; balance January 1, 1951, $708.78.
"(b) Savings account number S 3054 in the name of Robert J. Evans with The Toledo Trust Company; balance March 5, 1951, $936.80."
Lucille M. Evans, a defendant, filed an answer in which she asks the court to find and order that the $1,400 and the credit represented by the two bank accounts are a part of the residue of the estate to be disposed of in accordance with item eight of the will.
Nell Balduf, another defendant, filed an answer in which she asks for construction of item five of the will which would give her "all money, currency, money orders, checks and bankbooks customarily kept by said testator in said metal box," in accordance with the testator's true intention.
The matter came on for hearing upon the pleadings and the testimony of three witnesses, namely Amelia C. Bauer and Nell Balduf, beneficiaries under the will, and Arthur C. Cline, a Toledo attorney who had represented testator during his lifetime and who was representing the executor in the settlement of the estate.
At the time of testator's death there was $7.50 in the box referred to in item five of the will, namely a five-dollar gold piece and $2.50 in currency.
The testimony of Cline, the attorney, tended to substantiate the quoted allegations of the petition, and Mrs. Balduf's testimony was directed pretty largely to the friendly relationship which existed among the testator, herself and her family.
At the conclusion of all the evidence, the attorney for Lucille M. Evans moved "the court to make a finding and judgment construing said will, to wit: That under item 5 of the will the $5 gold piece and $2.50 in cash goes under that, and that the remainder goes under the residuary clause." Such motion was sustained and the court rendered its judgment accordingly.
An appeal on questions of law was taken to the Court of Appeals. In its judgment entry that court found "that the Probate Court of Lucas County, Ohio erred in finding that it was not the intention of the testator, Robert J. Evans, to make a specific bequest of the sum of fourteen hundred dollars ($1,400) under the item fifth of the last will and testament of Robert J. Evans, deceased," and "ordered, adjudged and decreed that Carl Balduf, executor of the estate of Robert J. Evans, deceased, be authorized and directed to carry out the true intention of the last will and testament of Robert J. Evans, deceased, by paying the specific legacy provided for in item fifth of said last will and testament to Nell Balduf in the sum of fourteen hundred dollars ($1,400), which is in addition to the judgment of the Probate Court finding said Nell Balduf en-entitled as a specific legacy under said item fifth of a $5 gold piece and $2.50 in silver; and that in all other respects the judgment of the Probate Court is affirmed and this cause is remanded to the Probate Court of Lucas County, Ohio, for further proceedings in accordance with the finding and judgment of this court as herein modifying the judgment of said Probate Court."
The cause is now in this court for review and final determination pursuant to the allowance of a motion to certify the record.
Messrs. Cline, Bischoff Cook, for appellee Carl R. Balduf, executor.
Messrs. Zachman, Boxell, Bebout Torbet, for appellant.
Mr. Harley A. Watkins and Mr. A.J. Quinn, for appellee Nell Balduf.
It may well be that the Court of Appeals arrived at a just result in its disposition of this cause, but is that disposition in accordance with settled legal principles and did not the Court of Appeals, in effect, make a will for the testator?
Item five of the will is plain and to the point; it creates a specific legacy and gives and bequeaths to Nell Balduf "all cash in the box on the desk in the back room of my home." And that is all. No extrinsic evidence is necessary or proper to explain that item.
A will ordinarily speaks as of the death of the testator. When the testator died there was but $7.50 in the box referred to, and that represents the extent of Nell Balduf's legacy.
Had the testator intended her to have $1,400, or a similar amount, he would have bequeathed her that sum in the same manner he bequeathed the $100 in item four of his will.
By item two of his will, the testator bequeathed his automobile, a specific item, to his brother. Had that automobile been wrecked before testator's death, the brother could hardly have claimed the value of the automobile before it was wrecked.
We think the judgment of the Probate Court herein rests on a sound legal foundation. Therefore, the judgment of the Court of Appeals is reversed and that of the Probate Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART, BELL and TAFT, JJ., concur.